Ramey v. Commissioner of Correction

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RYAN RAMEY v. COMMISSIONER OF CORRECTION
(AC 34367)
Alvord, Keller and Pellegrino, Js.
Argued February 18—officially released May 13, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Michael D. Day, for the appellant (petitioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva B. Lenczewski, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Ryan Ramey, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. The petitioner
claims that the court (1) abused its discretion in denying
his petition for certification to appeal and (2) improp-
erly concluded that he was not deprived of the effective
assistance of trial counsel. Specifically, the petitioner
claims that his counsel rendered ineffective assistance
by failing to raise the issue of intoxication to negate
an element of the crime of which he was convicted at
the underlying criminal trial. We dismiss the petition-
er’s appeal.
The relevant facts and procedural history are set forth
in this court’s decision disposing of the petitioner’s
direct appeal. ‘‘The [petitioner] lived in a first floor
apartment in Naugatuck from March, 2004, to October,
2006. All six apartments in the building had tenants at
the time. In the late morning of October 13, 2006, the
[petitioner] telephoned Samantha Squires, his former
fiancee and the mother of his two children, and indi-
cated a desire to commit suicide. In response, Squires
called the police and asked them to check on him. When
the police arrived at the apartment building, they saw
that a window on the first floor had been punched
out and broken glass was hanging from it. Rather than
entering the building, the police decided to attempt to
make telephone contact with the [petitioner]. At 11:25
a.m., the police telephoned the [petitioner] at a number
provided by Squires. The [petitioner] answered but
immediately hung up once the police officer identified
himself. At 11:31 a.m., the other first floor tenant, who
was nervous because she had heard breaking noises
coming from the [petitioner’s] apartment for several
hours, left the premises in her car. The police continued
to call the [petitioner’s] telephone number, but he would
not converse with them.
‘‘A police officer reported seeing a person moving
back and forth inside the [petitioner’s] apartment at
12:04 p.m. At 12:15 p.m., the [petitioner] answered a
telephone call from a police officer, threatened to jump
out a window if the police called again, and then hung
up. The officer telephoned again at 12:20 p.m., but the
call went straight to voice mail, as did all subsequent
calls. Another police officer reported seeing smoke
inside the building at 12:22 p.m. At 12:25 p.m., he saw
the [petitioner], who was coughing, climb onto the fire
escape through a back window. After the officer asked
him to come down, the [petitioner] reentered the build-
ing and closed the blinds and one of the windows. The
officer then reported at 12:31 p.m. that the fire had died
down. At 12:38 p.m., however, he reported that the
fire had regained force. Thereafter, the fire became
progressively worse, melting the blinds and roaring.
Rescue workers waited outside the building because
they did not know the [petitioner’s] location and they
feared for their own safety. At 1:37 p.m., the [petitioner]
fell from a third story window, at which time the police
had to physically restrain him while placing him under
arrest. Firefighters immediately began to suppress the
fire. While they were inside the house, however, part
of the roof collapsed, forcing them to retreat. Ulti-
mately, they were able to extinguish the fire only after
the building sustained severe structural damage.’’ State
v. Ramey, 127 Conn. App. 560, 562–64, 14 A.3d 474,
cert. denied, 301 Conn. 910, 19 A.3d 177 (2011).
The petitioner was convicted, after a jury trial, of the
crimes of arson in the first degree in violation of General
Statutes § 53a-111 (a) (1), arson in the first degree in
violation of § 53a-111 (a) (4) and interfering with an
officer in violation of General Statutes § 53a-167a.1 The
trial court imposed a total effective sentence of twelve
years incarceration with eight years to serve and three
years of probation. Id., 564.
On January 25, 2012, the petitioner filed an amended
petition for a writ of habeas corpus alleging that his trial
counsel, Attorney H. Jeffrey Beck, provided ineffective
assistance because he ‘‘failed to present evidence sup-
porting his intoxication at the time of the alleged offense
or to raise a defense of intoxication to the arson
charges.’’ At the habeas trial, the court heard testimony
from Beck and the petitioner. The trial exhibits included
the state’s charging information, transcripts of the crim-
inal proceedings and the petitioner’s medical record
that indicated he had a blood alcohol level of 0.274 on
the day of the fire. At the conclusion of the habeas trial
on February 2, 2012, the court denied the petition in
an oral decision.
The court first noted that Beck was ‘‘very experi-
enced,’’ ‘‘supremely educated’’ and ‘‘competent and
skilled in what he does.’’2 On the basis of Beck’s testi-
mony, the court found that Beck had considered raising
the issue of the petitioner’s intoxication and had dis-
cussed that potential strategy with him. Ultimately,
Beck concluded that it would be a better defense strat-
egy to attack the weaknesses in the state’s case. The
habeas court determined that Beck’s performance was
not deficient. It also concluded that the petitioner failed
to prove that he had been prejudiced in any way by the
failure to raise at the criminal trial the issue of his
level of intoxication. The court subsequently denied the
petition for certification to appeal from the judgment
denying the habeas petition. This appeal followed.
We first consider the petitioner’s claim that the
habeas court improperly denied his petition for certifi-
cation to appeal. The standard of review is well settled.
‘‘We examine the petitioner’s underlying claim . . . to
determine whether the habeas court abused its discre-
tion in denying the petition for certification to appeal.
. . . In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . .
‘‘In Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States
Supreme Court enunciated the two requirements that
must be met before a petitioner is entitled to reversal
of a conviction due to ineffective assistance of counsel.
First, the [petitioner] must show that counsel’s perfor-
mance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable.’’ (Internal quotation
marks omitted.) McClam v. Commissioner of Correc-
tion, 98 Conn. App. 432, 435–36, 909 A.2d 72 (2006),
cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). ‘‘A
reviewing court need not address both components of
the inquiry if the [petitioner] makes an insufficient
showing on one.’’ (Internal quotation marks omitted.)
Smith v. Commissioner of Correction, 89 Conn. App.
134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909,
882 A.2d 676 (2005).
The petitioner claims that trial counsel rendered inef-
fective assistance because ‘‘he failed to raise an intoxi-
cation defense’’ at the underlying criminal trial.
Intoxication is not a defense to a criminal charge, but
it may be offered by a defendant to negate an element
of the crime charged.3 The petitioner argues that
because his blood alcohol level on the day of the inci-
dent was 0.274, defense counsel should have advanced
the theory ‘‘that even assuming, arguendo, that the peti-
tioner did start the fire, the petitioner was unable to
formulate the specific intent required for the commis-
sion of the crime of arson in the first degree.’’
At the habeas trial, Beck testified that he believed
the state would not be able to prove beyond a reason-
able doubt that the petitioner intended to damage or
destroy a dwelling or building or that he intended to
start a fire, as required for a conviction of arson in the
first degree.4 He based this opinion on the fact that the
fire marshal did not know and could not testify as to
how the fire originated. Although the fire marshal
believed it had started in the living room area of the
petitioner’s apartment because of the burn pattern, the
cause of the fire remained undetermined. Further, there
was no evidence of any accelerant being used to start
the fire. Because the state had no physical evidence of
the fire being set intentionally, Beck determined that
the best trial strategy would be to undermine the state’s
case by focusing on its weaknesses.
Beck further testified that he had considered raising
the issue of the petitioner’s level of intoxication on the
day of the fire and had discussed that potential strategy
with the petitioner. He believed, however, that the best
strategy was to attack the weaknesses in the state’s
case because the failure to prove the petitioner’s intent
to destroy or damage the apartment building by starting
a fire would result in his acquittal. Beck believed that
focusing on the petitioner’s voluntary intoxication
‘‘might not play well with the jury.’’ The petitioner told
Beck that he had little or no recollection of what hap-
pened when the fire started, and Beck believed it would
not be helpful to raise the issue of intoxication because
‘‘it kind of looks like an excuse to criminal conduct
. . . .’’ Furthermore, he knew that the state intended
to present evidence at trial that supported its claim that
the petitioner was quite aware of his actions, which
made it unlikely that intoxication could have been used
successfully to show that the petitioner was incapable
of forming the requisite criminal intent for arson in the
first degree. During the habeas trial, Beck confirmed
that there had been several telephone conversations
between the petitioner and the police officers during
the relevant time period at the apartment and that the
petitioner had been able to travel from his first floor
apartment up to the third floor through a fire engulfed
building in order to jump to safety.5 For those reasons,
Beck believed it was not a good trial tactic to rely on
the petitioner’s intoxication, and he ‘‘felt strongly about
the strategy’’ that he had chosen.
The only other witness at the habeas trial was the
petitioner, who testified that he told Beck that he had
been drinking heavily from the night before the fire
into the early morning hours.6 He also testified that he
recalled the sun coming up, but that he ‘‘really didn’t
remember much after that until waking up to a fire.
. . . I couldn’t really see much after that, I couldn’t see
at all. You know, I didn’t remember anything, really,
after that until I woke up from a coma.’’
On the basis of this record, we conclude that the
habeas court correctly determined that the petitioner
failed to demonstrate that Beck’s performance was defi-
cient when he failed to raise the issue of the petitioner’s
level of intoxication to the jury. Beck expressly stated
that he believed that the best trial strategy was to attack
the weaknesses in the state’s case because the lack of
forensic evidence would preclude the state from prov-
ing beyond a reasonable doubt that the petitioner had
set the fire intentionally. He testified that he had consid-
ered but rejected the idea of presenting an intoxication
defense at the criminal trial for strategic reasons.
As the habeas court properly found, the petitioner’s
claim that Beck should have raised the issue of intoxica-
tion is not persuasive because it is directed at Beck’s
trial strategy. ‘‘[S]trategic choices made after thorough
investigation of [the] law and facts relevant to plausible
options are virtually unchallengeable . . . .’’ (Internal
quotation marks omitted.) Crocker v. Commissioner of
Correction, 126 Conn. App. 110, 131, 10 A.3d 1079, cert.
denied, 300 Conn. 919, 14 A.3d 333 (2011). ‘‘[J]udicial
scrutiny of counsel’s performance must be highly defer-
ential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel
was unreasonable. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at
the time. . . .
‘‘[T]here is a strong presumption that the trial strategy
employed by a criminal defendant’s counsel is reason-
able and is a result of the exercise of professional judg-
ment . . . . It is well established that [a] reviewing
court must view counsel’s conduct with a strong pre-
sumption that it falls within the wide range of reason-
able professional assistance and that a tactic that
appears ineffective in hindsight may have been sound
trial strategy at the time.’’ (Internal quotation marks
omitted.) Coward v. Commissioner of Correction, 143
Conn. App. 789, 800–801, 70 A.3d 1152, cert. denied,
310 Conn. 905, 75 A.3d 32 (2013). Beck’s decision not
to call attention to the petitioner’s intoxication ‘‘falls
into the category of trial strategy or judgment calls
that we consistently have declined to second guess.’’
(Internal quotation marks omitted.) Crocker v. Com-
missioner of Correction, supra, 126 Conn. App. 132.
Because the habeas court credited Beck’s testimony
that the decision not to argue intoxication was a matter
of trial strategy, the petitioner failed to demonstrate
that counsel’s actions were unreasonable under the cir-
cumstances of this case.
Furthermore, we agree with the habeas court that
even if such a strategy constituted ineffective assis-
tance, the petitioner did not prove that he had been
prejudiced by the failure to raise the issue of his intoxi-
cation. As noted by the habeas court, the petitioner
relied solely on his blood alcohol level on the day of
the fire to support his argument that he was incapable
of forming the requisite intent to damage or destroy a
building by starting a fire. No evidence was presented
to the habeas court that indicated the petitioner’s blood
alcohol level at the time the fire was set. Further, no
toxicologist testified as to whether the petitioner’s level
of intoxication caused a ‘‘substantial disturbance of
mental or physical capacities’’; General Statutes § 53a-
7; that rendered him unable to form the specific intent
required to commit arson in the first degree.7 Such an
opinion, of course, would take into consideration such
factors as the petitioner’s height and weight. Without
evidence of this nature, the petitioner failed to prove
that he was prejudiced by any alleged deficiency in
Beck’s performance.8
Upon our examination of the record and briefs, as
well as the court’s resolution of the issues presented
in the habeas petition, we are not persuaded that the
court abused its discretion in denying the petition for
certification to appeal. The petitioner has not demon-
strated that the issues presented are debatable among
jurists of reason, that a court could resolve the issues
in a different manner or that the questions are adequate
to deserve encouragement to proceed further. See
Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,
112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn.
608, 616, 646 A.2d 126 (1994).
The appeal is dismissed.
In this opinion KELLER, J., concurred.
1
Initially, the petitioner also was charged with two counts of cruelty to
animals in violation of General Statutes § 53-247 (a). The third floor tenants
had two dogs, a five year old yellow Labrador retriever named Chelsea and
a two year old chocolate Labrador retriever named Guinness, that perished
in the fire. At the close of the state’s case, the petitioner made an oral
motion for a judgment of acquittal as to all charges. The court granted the
motion with respect to the cruelty to animals charges for the stated reason
that there was no direct evidence that the petitioner knew that the dogs
were in the third floor apartment on the day of the fire.
2
The evidence demonstrated that Beck had participated in sixty to seventy
criminal trials, including cases involving serious felony charges, by the time
he represented the petitioner.
3
General Statutes § 53a-7 provides in relevant part: ‘‘Intoxication shall
not be a defense to a criminal charge, but in any prosecution for an offense
evidence of intoxication of the defendant may be offered by the defendant
whenever it is relevant to negate an element of the crime charged . . . .
As used in this section, ‘intoxication’ means a substantial disturbance of
mental or physical capacities resulting from the introduction of substances
into the body.’’
4
General Statutes § 53a-111 (a) provides in relevant part: ‘‘A person is
guilty of arson in the first degree when, with intent to destroy or damage
a building . . . he starts a fire or causes an explosion, and (1) the building
is inhabited or occupied or the person has reason to believe the building
may be inhabited or occupied . . . or (4) at the scene of such fire or
explosion a peace officer or firefighter is subjected to a substantial risk of
bodily injury.’’
5
In the transcripts of the criminal proceedings that were submitted as
exhibits during the habeas trial, there also was testimony that (1) one of
the tenants heard breaking noises coming from the petitioner’s apartment
from 5 a.m. until she left the building at 11 a.m., (2) when a police officer
contacted the petitioner at noon, the petitioner said, ‘‘I don’t want your
help,’’ (3) when a police officer contacted the petitioner at 12:15 p.m., the
petitioner told him that he would jump from the window if the police called
again, (4) an officer noticed smoke coming from the building at 12:22 p.m.,
(5) the fire originated in a pile of Squires’ clothing and other personal items,
which she said she had seen strewn about the petitioner’s apartment a few
days before the fire, (6) when the petitioner arrived at the third floor and
climbed onto the fire escape at 12:25 p.m. and the officer asked him to
come down, the petitioner reentered the smoky building and closed the
blinds and one of the windows, (7) the fire became more intense after the
petitioner reentered the building, (8) when the petitioner jumped or fell
from the third story window at 1:37 p.m., he started to get up as if he
intended to run from the scene, and (9) when the petitioner spoke with
Squires after the fire, he told her that he remembered setting free his and
Squires’ cat and bird before the fire. Accordingly, even though the petitioner
testified at the habeas hearing that he woke up after the fire started and
was in ‘‘a coma’’ until that time, Beck reasonably could have determined
that the evidence would preclude a viable argument that the petitioner was
so intoxicated that he was incapable of forming the intent to damage or
destroy the building by setting a fire.
6
The dissent, relying on a statement in the presentencing memorandum
of law from the petitioner’s criminal trial, states that the petitioner ‘‘had
been drinking for more than eighteen hours, consuming a liter of tequila in
that time.’’ At the habeas trial, however, the petitioner testified that he
‘‘bought a bottle of tequila’’ and that he ‘‘and a few of my friends came back
to the house, stayed there drinking until . . . the sun was coming up, and
that’s when they left.’’ It appears, if the petitioner’s testimony is credited,
that a number of people were drinking from the bottle of tequila.
7
The dissent cites State v. Rodriguez, 44 Conn. App. 818, 822, 692 A.2d
846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997), for the proposition
that ‘‘it is not necessary for a defendant to present evidence of the effect
of an intoxicating substance on him to require an instruction on intoxication
and specific intent.’’ (Emphasis added.) Significantly, this case is a direct
appeal from a criminal case in which the defendant requested jury instruc-
tions on intoxication. The present case is a habeas case, which requires
the petitioner to prove both deficient performance of counsel and prejudice
to the defense because of the deficient performance. Here, the petitioner
failed to meet the prejudice prong of Strickland because he failed to present
evidence that his level of intoxication caused a ‘‘substantial disturbance of
mental or physical capacities . . . .’’ General Statutes § 53a-7.
8
On January 26, 2012, which was less than one week before the scheduled
habeas trial date, the petitioner filed a motion for a four month continuance
of the trial in order to retain a toxicology expert to review the petitioner’s
medical records and offer an opinion as to the effect of his intoxication on
his ability to form the requisite intent. The court, Solomon, J., denied his
motion, and the petitioner has not challenged that ruling on appeal.